NEW INDIA INSURANCE CO. Vs. ANAND KUMAR JHA

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India for quashing the order dtd. 24/2/2023 passed by learned Additional District Judge -cumMotor Vehicle Accident Claims Tribunal, Vaishali Hajipur dismissing the Civil Misc. Case No. 39 of 2021 filed for review of judgment passed in Claim Case No. 78 of 2016.

(2.) Conspectus of the case is that one Claim Case bearing No. 78 of 2016 was filed under Sec. 166 of the Motor Vehicles Act, 1988 (in short 'the Act') by the parents of the deceased Shashi Bhushan Kumar submitting that their son died in an accident caused by the vehicle bearing Registration No. BR 30P 5666. The petitioners were made party as opposite party nos. 3(I) and 3 (II) being the insurer of the vehicle in question which met with the accident. The petitioners appeared after receipt of notice before the Claims Tribunal, Vaishali at Hajipur and filed the written statement. Vide order dtd. 31/7/2019, Claims Tribunal allowed the claim petition and directed the petitioners to pay and satisfy the award with right to recover the said amount from the owner. However, no appeal was preferred by the petitioners against the aforesaid judgment and award. Subsequently, it came to the knowledge of the petitioners that at the time of accident, the vehicle was not insured with the petitioner New India Assurance Company Ltd. and the insurance policy as brought on record was a subsequent policy issued after the accident. Thereafter, the petitioners filed Civil Misc. Case No. 39 of 2021 for review of the judgment and award. On 24/2/2023, learned Additional District Judge IX -cum- Motor Vehicle Accident Claims Tribunal, Vaishali Hajipur dismissed the review petition on the ground of limitation. The said order is under challenge before this Court.

(3.) Mr. Ashok Priyadarshi, learned counsel for the petitioners at the outset submitted that in the light of decisions of the Hon'ble Supreme Court, the review petition filed by the petitioners could not be dismissed on the point of limitation. Mr. Priyadarshi further submitted that while reviewing the documents, from the inquest report of the police, the fact came to the notice of the petitioners that the body of the deceased Shashi Bhushan Kumar was found at 12.40 hours on 26/5/2016 on the spot of accident and in column 9, the number of offending vehicle has also mentioned in the inquest report. The insurance policy mentions the start of insurance cover from 1.27 PM dtd. 26/5/2016 till 11.59 PM dtd. 25/5/2017. Thus the accident had taken place before the policy was issued. Mr. Priyadarshi further submitted that the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Jikubhai Nathuji Dabhi reported in (1997) 1 SCC 66 and Oriental Insurance Company Vs. Sunita Rathi reported in AIR 1998 SC 257 has held that the policy will come into effect from the date and time as mentioned in the policy and that liability of the insurance company will start when the policy becomes operative. Now the bare reading of inquest report and the policy document of the offending vehicle shows that the accident had taken place much before the vehicle was insured with the petitioners and for this reason vehicle in question was not insured at the time of accident rather the respondent owner has suppressed the inquest report otherwise the owner would have been liable to pay the award amount as the vehicle in question was not insured at the time of accident. Mr. Priyadarshi further submitted that the Claims Tribunal failed to exercise the jurisdiction vested with it when it refused to review the judgment and award though it has been brought to the notice of the learned tribunal that the said award has been obtained by practicing fraud and misrepresentation. Learned Tribunal ought to have examined the question on which the review has been sought. In this regard the learned counsel referred to the decision of learned Single Judge in the case of Chairman, The New India Assurance Company Ltd. Vs. Most. Prabhawati Devi and Others reported in (2007) 1 PLJR 337 wherein it has been held that in case of alleged fraud, the Tribunal must entertain an application filed by the aggrieved party under Ss. 151, 152 and 153 of the Code of Civil Procedure (hereinafter as 'the Code') relying on the another decision of this Court in the case of Munna Kumar Singh Vs. The National Insurance Company and Others reported in (2006) 4 PLJR 262. Mr. Priyadarshi further relied upon a decision of Hon'ble Supreme Court in the case of United India Insurance Company Ltd. Vs. Rajendra Singh and Others reported in AIR 2000 SC 1165 wherein the Hon'ble Supreme Court held that the remedy to move for recalling the order on the basis of the newly discovered fact amounting to fraud of high degree, cannot be foreclosed in such a situation. The Hon'ble Supreme Court has further held that no Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Mr. Priyadarshi further submitted that the claim of the petitioners that the vehicle was not insured with the petitioners at the time of insurance cannot be simply brushed aside without further probe into the matter. Mr. Priyadarshi further submitted that as soon as the petitioners came to know about the fraudulent representation of the owner of the vehicle about his vehicle being insured at the time of accident, the petitioners moved before the learned Claims Tribunal for review of the earlier order and rightly so as the petitioners did not prefer any appeal and even if any appeal would have been preferred, the scope of the appeal would be limited to issues formulated from the pleadings made till the filing of appeal. Thus, learned counsel submitted that the learned Claims Tribunal erred in dismissing the Civil Miscellaneous case filed for review of the judgment and award dtd. 31/7/2019 passed in Claim Case No. 78 of 2016.